Andhra HC (Pre-Telangana)
Neelamsetti Kataji Rao And Others vs Regati Ramaraju on 23 March, 2001
Equivalent citations: 2001(4)ALT199
JUDGMENT
1. This is an appeal by the defendants in OS No.8 of 1983 on the file of the Court of the I Additional Subordinate Judge, Visakhapatnam. For the sake of convenience, the parties hereinafter would be referred to as they are arrayed in the trial Court.
2. The suit is filed by the respondent (plaintiff) against the appellants (defendants) for cancellation of the sale deed dated 30-3-1978 registered on 18-7-1981 in the Registrar's Office, Visakhapatnam, i.e., Ex.B4. The case, in brief, of the plaintiff is that his father Govinda Rao was the divided brother of Venkata Lakshmi Narayana Rao (hereinafter called 'the deceased), who, after partition with his brother, acquired properties including the property described in the schedule appended to the plaint (for short 'the suit property'), and died unmarried and issueless, bequeathing the suit property to him under the Will dated 27-10-1974 executed in a sound disposing state of mind. After the death of the deceased, plaintiff demanded rent from the tenants of the suit property, who informed him that defendants are claiming rents from them on the ground that they purchased the suit property from the deceased. Thereupon, he issued a notice to the defendants for which defendants sent a reply alleging that they purchased the suit property from the deceased under a registered sale deed dated 30-3-1978. Since the deceased was not mentally stable from December, 1977, and was not in a position to look after his affairs, and was a puppet in the hands of one M. Kameswara Rao, the sale deed dated 30-3-1978 in respect of the suit property, being relied on by the defendants, must have been obtained by the defendants by playing fraud or misrepresentation, and the same is also not supported by consideration. There are several material alterations in the said sale deed also. Hence the suit to set aside the said sale deed dated 30-3-1978 said to have been executed by the deceased in favour of the defendants.
3. Defendants filed a common written statement denying the allegations in the plaint, including the execution of the Will by the deceased, and alleging that after negotiations with them the deceased sold the suit property for Rs.1,85,000/- under a registered sale deed dated 30-3-1978 (Ex.B.4) and received Rs.68,500/- on various dates prior to execution of sale deed, Rs.36,500/-at the time of execution of the sale deed and Rs.80,000/- by way of a demand draft on 30-3-1978, and delivered possession of the suit property and presented the sale deed for registration on the same day. As permission to sell the suit property sought by the deceased from the Urban Land Ceiling Authority, was not granted the sale deed was not registered. Therefore, the deceased filed WP No.4981 of 1980 for a direction to the Joint Sub-Registrar, Visakhapatnam, to register the sale deed dated 30-3-1978. After the said writ petition was allowed the document was registered. The sale deed dated 30-3-1978 is supported by consideration, and is not vitiated by fraud or misrepresentation, and was not brought into existence by M. Kameswara Rao as alleged and so the suit is liable to be dismissed.
4. Basing on the above pleadings four issues and one additional issue were settled for trial by the trial Court. On his behalf plaintiff examined himself as PW1 and five other witnesses as PWs.2 to 6 and marked Exs.A1 to A29. On behalf of defendants, first defendant was examined as DW1. Six other witnesses were examined by them as DWs.2 to 7 and Exs.B1 to B8 were marked. Exs.X1 to X3 were marked through PW2. The Court below, which heard this suit along with two other suits OS Nos.444 of 1987 and 544 of 1987, delivered a common judgment and held on issue No.1 which relates to the question whether the suit is barred by time, on issue No.2 which relates to the question whether the suit is bad for non-joinder of necessary parties, on issue No.3 which relates to the question whether the plaintiff is entitled to cancellation of sale deed dated 30-3-1978, and on additional issue which relates to the question whether the plaintiff is entitled to recover possession of suit property from* defendants, in favour of the plaintiff, and on the basis of the findings on issues 1 to 3 and the additional issue, on issue No.4, which relates to the relief, decreed the suit of the plaintiff by decree and judgment under appeal. Hence the appeal by the defendants.
5. The point that arises for consideration in this appeal is whether the plaintiff is entitled to seek cancellation of Ex.B4 on the grounds stated in the plaint?
6. The contention of Sri T. Veerabhadraiah is that as the plaintiff is claiming title to the suit property only through the Will executed by the deceased, and since the deceased admitted execution of Ex.B4 aad sought its registration by filing WP No.4981 of 1980 in this Court, plaintiff cannot question Ex.B4. Sri J. V. Suryanarayana Rao, on behalf of plaintiff, raised three contentions, viz., (1) Fraud can be inferred from circumstances and the several circumstances brought out by the plaintiff in evidence establish fraud and therefore Ex.B4 is liable to be set aside on the ground of fraud. That a document which came into existence due to fraud being a voidable transaction, the same can be avoided not only by the party on whom fraud is played, but also his legal heirs or devisees under a Will. (2) Ex.B4 is materially altered and so the same is invalid and unenforceable, as material alterations in a document render it void. He contended that the alterations in Ex.B4 are clear when the same is compared with Ex.A2, and therefore, it is clear that those alterations in Ex.B4 were made subsequent to its execution by the deceased, and (3) Ex.B4 is not supported by consideration and so is void. It is his contention that there is no evidence on record to show that amounts shown as paid to the deceased prior to execution of Ex.B4 in Ex.B4 were actually paid to him and so it cannot be said that amount allegedly paid to the deceased prior to execution of Ex.B4 as mentioned in Ex.B4 was paid to him, that the evidence on record does not establish that amount agreed to be paid at the time of execution of Ex.B4 was paid to the deceased. It is his contention that since date of execution of Ex.B4 and its presentation for registration is the same, amount if really paid could have been paid before the Sub-Registrar, but it was not so paid. So payment of that amount to the deceased is doubtful. That the amount covered by the Pay Order mentioned in Ex.B4 was not received by the deceased but was credited to the account of M Kameswara Rao, as seen from the evidence of PWs.2 and 6, and thus from the evidence on record it cannot be said that consideration mentioned in Ex.B4 was in fact received by the deceased. He contended that all these circumstances also establish that M. Kameswara Rao played fraud on the deceased and brought Ex.B4 into existence and contended that since the trial Court gave cogent reasons for setting aside Ex.B4, there are no grounds to interfere with the said judgment or reasoning. He relied on Henry Pigot's case, 77 ER 1177, Master v. Miller, 100 ER 1042, Suffell v. The Bank of England, 9 QBD 555, Pet. Manik Jee v. Motee Chund Manik Jee, 1 Moor Indian Appeals 420, Gour Chandra Das v. Prasanna Kumar Chandra, ILR 33 Cal. 812, Satish Chandra v. Satish Kantha, AIR 1923 PC 73, Gresley v. Mousley, 45 ER 31, Holman v. Loynes, 43 ER 510, Morley v. Loughnan, 1893 (1) Chancery Division 736, Allcard v. Skinner, 1887 (36) Chancery Division 145, Mitchell v. Homfray, 8 QBD 587, Shravan Goba Mahajan v. Kashiram Devji, ILR 51 Bom. 133 and Pardhana v. Amin Chand, , in support of the contentions raised by him. In reply, the contention of Sri T. Veerabhadraiah is that particulars of the alleged fraud are not mentioned in the plaint as required by Order 6, Rule 4 CPC, and contended that as Ex.B4 was not in the custody of the defendants, they cannot be expected to explain the alterations therein, and in any event as alterations in Ex.B4 did not cause any prejudice to the deceased they are not 'material alterations'. He relied on Kalianna v. Palani Gounder, and Loonkaran Sethia v, Ivane John, , Perraju v. Venkamma, and P. Udayani Devi v. V.V. Rajeshwara Prasad Rao, 1995 (2) APLJ 5.
7. Since plaintiff, as a legatee under a Will executed by the deceased, is seeking cancellation of Ex.B4 which was executed by the deceased, to be entitled to that relief claimed, he should establish that the deceased himself, by the date of his death, or suit could have sought for cancellation of Ex.B4 on any of the grounds alleged by him. If plaintiff fails to establish that the deceased could seek cancellation of Ex.B.4 by the date of his death, he cannot, merely on the basis of presumptions or suspicion that fraud or misrepresentation might have been played on the deceased, succeed in the suit. One of the grounds of attack of Ex.B4 by the plaintiff is fraud played on the deceased. Order 6, Rule 4 CPC mandates that in cases where fraud and misrepresentation are alleged, details thereof should specifically be pleaded and proved. In Bharat Dharma Syndicate v. Harish Chandra, AIR 1937 PC 146, the Privy Council held:
"Where a litigant prefers the charges of fraud or other improper conduct against the other party, the Tribunal, which is called upon to decide such issues should compel that litigant to place on record precise and specific details of these charges. Cases of such type will be much simplified if this practice is strictly observed and insisted upon by the Court even if no objection is taken on behalf of the parties who are interested in disproving the accusations". (Underlining mine) So, it is clear that even in a case where the defendant does not take a plea that fraud, misrepresentation, coercion, etc., alleged by the plaintiff against him are vague, the Court should insist on the plaintiff to place on record the specific and precise details of those charges. In Narayanan v. Official Assignee, AIR 1941 PC 93, the Privy Council held that 'fraud', like any other offence, must be established beyond reasonable doubt and that a finding as to fraud cannot be based on suspicion and conjecture. The Supreme Court in Bishundeo v. Seogeni Rai, , held that in cases of fraud, undue influence or coercion, parties pleading them must set out full particulars thereof, and that such cases have to be decided only on the particulars as alleged in the pleadings, and that there can be no departure from the pleadings, in evidence and that general allegations, in however strong a language they may be couched, are insufficient to amount to an averment of plea of fraud, etc. The said decision was followed by the Supreme Court subsequently in V.S. Vishwavidyalaya v. Rajkishore, . The averments in the plaint with regard to fraud and (or) misrepresentation allegedly played in execution of Ex.B4 by the defendants on the deceased, and the evidence adduced by the plaintiff in proof of those averments have to be examined in the light of the above decisions.
8. The specific averment in sub-para (f) of para-III of the plaint is that the deceased was not in a position to look after his affairs independently since December, 1977 and was mentally unstable and that M. Kameswara Rao of Visakhapatnam was dealing with all his affairs, keeping him as a puppet in his grip and that the sister of the plaintiff, who came to know about the attempts being made by some persons to grab the property of the deceased, due to his mental instability, gave a publication in "Eenadu" paper dated 4-1-1978 about the mental condition of the deceased, and that the deceased gave a petition to the Special Officer, Urban Ceiling, requesting him not to act upon any application filed in his name seeking permission to alienate his property and that the deceased, during his evidence in OS No.390 of 1974, deposed that he did not sell the suit property to anybody, and, so the deceased could not have executed a sale deed intending, or knowing, that he was conveying title and possession of the suit property to the defendants. Averments in sub-para (g) of Para-III relate to consideration mentioned in Ex.B4 sale deed. The averment in sub-para (i) of Para III is that M. Kameswara Rao must have brought Ex.B4 sale deed into existence by fraud or misrepresentation, and kept the deceased in dark about the sale deed during his life time, and so the deceased did not know that he executed Ex.B4 sale deed in favour of the defendants. The averments in sub-para (j) of Para-III of the plaint, introduced by way of an amendment to the plaint long subsequent to the institution of the suit, relate to the various additions, alterations and insertions made in Ex.B4. Thus there is no averment in the plaint that defendants obtained Ex.B4 by playing fraud etc., on the deceased. The specific averment in sub-para (i) of Para-III of the plaint reads:
"The said M. Kameswara Rao must have played the entire drama for his selfish ends to benefit the defendants, at the cost of late Lakshmi Narayaiia Rao (i.e., the deceased)".
As per the decision of the Privy Council and the Supreme Court referred to in para 9 above, plaintiff in order to be entitled a decree, has to establish the said fact of M. Kameswara Rao playing fraud (drama) by adducing acceptable evidence. Whether evidence on record establishes the same has to be seen.
9. PW1 is the plaintiff. PW2 is examined to show that the amount of Rs.65,000/- covered by Ex.X1 (payment order mentioned in Ex.B4) given to the deceased was credited to the account of M Kameswara Rao. PWs.3 to 5 are the attestor, scribe and son of another deceased attestor of Ex.A11 Will, said to have been executed by the deceased under which he bequeathed the suit property to the plaintiff. PW6 is examined to show that the writing on the reverse of Ex.X1 is the hand of M Kameswara Rao. This is all the oral evidence on record. As rightly contended by Sri T. Veerabhadrayya, the truth, validity and genuineness of Ex.A11 Will, is not very relevant for a decision in this appeal. Therefore, the evidence of PWs.3 to 5 need not be considered for deciding this appeal, more so because they did not speak anything about Ex.B4, or the health, or mental health, etc., of the deceased at the time of execution of Ex.B4. The evidence of PWs.2 and 6 relates to encashing of Ex.X.1 Pay Order, but not execution of Ex.B4. Thus, the entire case of the plaintiff relating to execution of Ex.B4 and the fraud and misrepresentation alleged by him rests entirely on his own testimony as PW1.
10. Plaintiff, during chief-examination, as PW1, stated that after the death of the deceased he claimed rent in respect of the suit properly from the tenants of the suit property and that they informed him that the first defendant is claiming rents from them on the ground that he purchased the suit property from the deceased, and so he issued the original of Ex.A12 notice to first defendant, for which first defendant gave Ex.A13 reply, and that on enquiry the scribe of Ex.B4 informed him that the deceased executed Ex.B4 sale deed without knowing its contents and that the deceased, on the day of execution of Ex.B4 sale deed, i.e., 30-3-1978, went to the Registrar's Office to get the sale deed in respect of the house purchased by him, and that M Kameswara Rao brought Ex.B4 sale deed into existence without consideration taking advantage that the deceased was acting to his (M. Kameswara Rao's) dictates. Thus the evidence of PW1, in his chief-examination itself, clearly establishes that the deceased himself personally went to the Registrar's Office on 30-3-1978 to get Exs.A6 and A7 sale deeds under which he purchased the house of DW6 registered in his favour. It is relevant to mention here that DW6, who executed Ex.A6 and A7 sale deeds in favour of the deceased on the same day of Ex.B4, also figured as an attestor to Ex.B4. The evidence of DW6 does not at all support the case of plaintiff on any aspect but on the other hand it fully supports the case of the defendants only.
11. The evidence of plaintiff is that the scribe of Ex.B4 informed him that the deceased executed Ex.B4 without knowing its contents. The scribe of Ex.B4 died. Plaintiff is relying on Ex.A15, deposition of the scribe of Ex.B4 given by him in OS No.140 of 1977. In view of Section 33 of the Evidence Act, Ex.A15 is relevant and can be taken into consideration. From Ex.A15, it is seen that the scribe of Ex.B4 clearly stated that he scribed Ex.B4 at the instance of, and on the information furnished by, the deceased. The evidence of PW1 that the scribe of Ex.B4 informed him that the deceased executed Ex.B4 without knowing its contents stands belied by Ex.A15.
12. In Ex.A11 publication allegedly made by the sister of the plaintiff, it is stated that the deceased is unable to look after his own affairs, and is mentally unstable. Ex.A11 cannot be said to have been proved because the sister of the plaintiff, who allegedly made that publication, is not examined to swear to the fact that she in fact got the said publication made, and since she was not offered for cross-examination by the defendants. No medical evidence also is adduced by the plaintiff to show that the deceased had some mental deficiency prior to or during 1978. If the deceased was mentally unsound, there should be some medical or documentary evidence like prescriptions, etc. On the date of Ex.B4 deceased had not only purchased property under Exs.A6 and A7 from DW6 but had also executed Ex.A10 sale deed in respect of the property purchased by him under Ex.A3 sale deed. Here it is necessary to mention that at page 2 of the deposition of PW1, during chief-examination, the date of the original of Ex.A10 sale deed executed by the deceased is typed as 13-3-1978, though in fact Ex.A10 is dated 30-3-1978. It can be taken as a typographical error. It is significant that the plaintiff who questioned Ex.B4 sale deed in favour of defendants on the ground that M. Kameswara Rao, who kept the deceased as puppet in his hands, 'must have played fraud on the deceased', did not even state in his evidence, or allege in the plaint, that he or some others initiated proceedings to set aside the original of Ex.A10, which was executed by the deceased in favour of the son of the said Kameswara Rao, on the same day on which Ex.B4 was executed. So, it can be taken that the original of Ex.A10 sale deed remained unquestioned. It is also significant that plaintiff did not state either in the plaint or in his evidence that Exs.A6 and A7 were not obtained by the deceased himself and that the original of Ex.A10 was not executed by the deceased voluntarily. The circumstance of plaintiff purchasing property under Exs.A6 and A7, ex facie, belies the contention of the plaintiff that the deceased was mentally unstable, and was not aware of what he was doing by 30-3-1978. For this reason also Ex.A11 publication pales into insignificance, and so no weight can, or need, be attached thereto and has to be ignored as unproved and inadmissible for non-examination of the author of the publication.
13. Coming to Ex.A28, a certified copy of a representation dated 29-4-1978 said to have been sent by the deceased to the Special Officer, Urban Land Ceiling, Visakhapatnam, it is to be noted that Exs.A27 to A31 were marked through PW1, after recalling him for further examination long after his examination was completed. During cross-examination he admitted that he did not see the original of Ex.A28 in the Urban Land Ceiling Office, and did not take out summons for production of the original of Ex.A28. Since Ex.A28 does not disclose as to when it was received in the Urban Land Ceilings Office, it is not known whether it was received before or after the filing of the suit in the Urban Land Ceiling Office. It is also not known if Ex.A28 contains the signature of the deceased or not. Anybody, in the name of somebody can address letters to any public officer. Certified copies of any letter received in a public office can be obtained by anybody. Production of a certified copy of a letter received in a public office by itself is not proof of such letter. In order to prove that the original of Ex.A28 was written or addressed by the deceased to the Special Officer, plaintiff should have taken steps for production of the original of Ex.A28, and should have adduced evidence to show that it (original of Ex.A28) contains the signature of, or is in the hand writing of, the deceased. Only when it is proved or established that the original of Ex.A28 contains the signature or handwriting of the deceased can Ex.A28 be said to have been proved and would have relevance. In the absence thereof, Ex.A28 can be used only to show that such an application was received in the Urban Land Ceiling Office and for no other purpose. Since plaintiff failed to adduce evidence to show that the original of Ex.A28 contains the signature of, or is in his handwriting of the deceased, Ex.A28 cannot be taken into consideration for holding that the deceased sent or filed Ex.A28 before the Special Officer, and so Ex.A28 has little relevance for deciding this case.
14. During cross-examination on 18-8-1989 plaintiff, as PW1, admitted that the deceased filed a writ petition in the High Court for a direction to the Joint Registrar to register the sale deed (Ex.B4), and that Ex.B3 is a copy of the order in the writ petition filed by the deceased. Sri J. V. Suryanarayana Rao feebly contended that the said writ petition might have been filed by M. Kameswara Rao in the name of the deceased. With great respect, I am unable to agree with the said contention because there is neither an allegation in the plaint nor evidence in support of such contention. If really the plaintiff felt, or came to know, that the said writ petition was filed by M. Kameswara Rao in the name of the deceased, plaintiff, who sought leave to amend the plaint to incorporate pleas regarding alterations in Ex.B4, could have also taken a plea that the writ petition WP No.4981 of 1980 was in fact not filed by the deceased but was filed by M, Kameswara Rao in his name. But he did not do so. Therefore the contention of the plaintiff that Ex.B4 was obtained by fraud, stand belied as the deceased himself filed WP No.4981 of 1980 seeking a direction to the Joint Registrar to register Ex.B4, which was kept pending by the Joint Registrar for want of Urban Land Ceiling clearance.
15. It is the specific case of the plaintiff that the deceased, while giving evidence in OS No.390 of 1974, deposed that he did not sell the suit property to anybody and therefore Ex.B4 cannot be true. From Ex.A14 (certified copy of the deposition of the deceased in OS No.390 of 1994) it is seen that the deceased filed the said suit OS No.390 of 1974 for an injunction restraining the defendants therein from interfering with his possession over the property covered by the said suit. In that suit, the deceased was examined in Chief on 20-3-1978, and his further examination was taken up on several other dates. During cross-examination on 5-4-1978 he (the deceased) stated, "It is not true to say that I have put up this for sale now. I might have filed petition to the clearance for the land ceiling but I have not purchased any stamps". Even assuming that the word "this" in the above extracted portion of the deposition of the deceased relates to the suit property, it cannot have any bearing or relevance for deciding the truth, validity or genuineness of Ex.B4, because validity of a sale deed does not depend on that statement of the deceased, which can be proved to be untrue. When Ex.B4 admittedly contains the signature of the deceased and when the deceased himself presented Ex.B4 for registration in the Registrar's Office and filed a writ petition in this Court for a direction to the Joint Registrar to register the same, a stray sentence in his deposition, as stated above, does not affect the validity of Ex.B4. In view of Ex.B3 order in WP No.4981 of 1980, it is clear that the deceased, with full knowledge of Ex.B4, intended to get it registered with a view to complete the said sale transaction. If he had not executed Ex.B4 sale deed, or had no intention to register it, deceased would not have filed WP No.4981 of 1980 in this Court for a direction to the Joint Registrar to register the same. Had the said writ petition been filed by the defendants for a direction to the Joint Registrar to register the document, the situation or presumption may be different.
16. In the appendix of evidence to the judgment under appeal, the date of Ex.Bl is wrongly noted as 26-9-1982 instead of 26-9-1980 and OS Nos. are wrongly noted as 924/83 and 974/83 instead of 924/73 and 974/73. Ex.Bl shows that OS No.143 of 1977 on the file of the Court of Principal District Munsif, Visakhapatnam, along with three other suits, was disposed of by a common judgment dated 26-9-1980. The deceased, as first defendant in that suit, filed his written statement in that suit. Though the cause title of OS No.143 of 1977 in Ex.Bl does not show as to when defendants 6 to 9 therein i.e., defendants herein and another, were added as parties to that suit, from para-3 of Ex.B5 common judgment ofthe Appellate Court in the appeals AS No.43 of 1981 etc., (wrongly noted in the appendix of evidence to the judgment under appeal as OS No.43/81, etc., instead of AS No.43/81 etc.) it is clear that they were added as parties to OS No.143 of 1977 as per order dated 23-10-1978 in IA No.1934 of 1978. Ex.B1 also shows that defendants herein, as defendants 6 to 8 in that suit, filed their written statement contending that they purchased the property in that suit under the sale deed dated 30-3-1978 (i.e.,.Ex.B4) from the deceased, i.e., first defendant in that suit. Additional issues 1 to 3 in that suit relate to purchase of suit property therein (which is a part of the suit property in this case) by the defendants under Ex.B4 in this suit. No finding was given on additional issues 1 to 3 in that suit, but on additional issue No.4 in that suit, which relates to the question whether defendants 6 to 9 therein (who are defendants herein and another) are necessary parties to that suit, it was held that since admittedly defendants 6 to 9 therein, i.e., defendants herein and another, purchased the suit schedule site (in that suit) with building existing therein (part of the property covered by Ex.B4) during the pendency of the suit, they are necessary parties to the suit. Therefore, the deceased, as the first defendant in that suit OS No.143 of 1977, can be imputed with knowledge that the defendants herein as defendants 6 to 8 in that suit, took a plea that he sold the property in that suit along with other property to them under Ex.B4 sale deed. Deceased did not counter that claim by filing a re-joinder in that suit by alleging that Ex.B4 was got executed by playing fraud on him. Ex.B5 shows that appeal AS No.43 of 1981 preferred against Ex.B1 common judgment was dismissed, and that the plaintiff herein was added as a party to that appeal as the legal representative of the deceased. Therefore, the plaintiff, as a parry to AS No.43 of 1981, arising out of OS No.143 of 1977, should also be imputed with knowledge that the deceased did not move his little finger when the defendants herein alleged in that suit that he (the deceased) sold the property covered by that suit (which is a part of the suit property) to them under Ex.B4, and on that basis brought themselves on record as defendants 6 to 8 in that suit. Since the deceased himself did not dispute the claim of the defendants that he sold the suit property to them under Ex.B4, or allege that Ex.B4 was obtained by fraud or misrepresentation, etc., from him, the deceased, had he been alive and filed this suit on the date on which it was filed, could not have succeeded in getting Ex.B4 set aside. Therefore, plaintiff, claiming to be a legatee under the Will said to have been executed by the deceased, cannot seek cancellation of Ex.B4 on the ground it was obtained by playing fraud, etc., on the deceased.
17. I feel it relevant to state that by the date of death of the deceased on 7-9-1982, his right, if any, to seek cancellation of Ex.B4 stood barred by time under Article 59 of the Limitation Act, because the period of limitation is three years from the date of knowledge of the person seeking cancellation of the instrument. Since deceased himself presented Ex.B4 for registration on 30-3-1978, it has to be taken that he had knowledge of Ex.B4 on 30-3-1978 itself. Ex.B3 order dated 29-6-1981 in WP No.4981 of 1980 shows that the deceased alleged in the writ petition that he applied for permission to alienate to the Urban Land Ceiling Authority under Section 27 of the Urban Land Ceiling Act, on 28-3-1978, and that as the purchasers of the property (i.e., defendants) were insisting on his executing the sale deed, he executed the sale deed on 30-3-1978 on requisite stamps and presented it for registration. So, it is clear that he (the deceased) had knowledge of Ex.B4 on 30-3-1978 itself. Therefore, if the deceased wanted to seek cancellation of Ex.B4, he should have filed a suit to set aside Ex.B4, on or before 30-3-1981, i.e., three years from the date of Ex.B4. He did not do so. Therefore, by the date of his death in 1983, the right of the deceased to seek cancellation of Ex.B4 stood hopelessly barred by time.
18. All these apart, after registration of Ex.B4 title to the suit property stood transferred to the defendants. Therefore, deceased cannot be said to have died possessed of the suit property. Therefore, the bequest of the suit property made by the deceased to the plaintiff under Ex. A11 Will should be deemed to have been revoked by the deceased in view of Section 152 of the Succession Act. Illustration (i) of Section 152 of the Succession Act makes it clear that if a testator, during his lifetime, disposes of the property bequeathed by him, the legacy should be deemed to have been deemed, i.e., revoked. Therefore, plaintiff cannot be said to have inherited any right to or interest in the suit property by virtue of the Will executed by the deceased, for him to seek cancellation of Ex.B4.
19. The contention of Sri J. V. Suryanarayana Rao that the right to seek cancellation of a document on the ground, of fraud, etc., survives to his executors or legatees under a Will, as held in Pardhan's case (supra) and the other English decisions Gresely, Mousley, Holman, Morley, Allcard, Mitchell and Sharvan Goba Mahajan's cases (supra), which were in fact referred to in Pardhan's case (supra), can be of little doubt. But such right has to be exercised by the legatees, heirs and assignees, etc., well within the time before which the deceased executant of the questioned document could have claimed such relief. The legates assignees, heirs etc., do not get a fresh lease, or period of limitation from the date of death of the executant of the disputed document. Therefore, the legatees, assignees, heirs, etc., of the executant of a disputed document should institute the suit for cancellation of such document within the time in which the deceased executant of the document could have questioned, but not beyond the period of limitation of the date from which such deceased executant of a questioned document could have questioned the document. Therefore, plaintiff is not entitled to, and cannot be granted, relief of cancellation of Ex.B4 because had the deceased been alive and filed the suit on the date on which the plaintiff filed this suit, it was barred by time.
Ex.B4, the figure '33' is converted as '133' by prefixing the digit '1' before '33' and plot No.35 is converted as 'plot No.135' by adding digit "1" before '3'. Assuming that all the above are alterations and are made subsequent to the execution of the document, I am of the view that the above alterations cannot be said to be "material alterations", because the identity of the property sold thereunder is not changed, and as the deceased was not prejudiced by any of the said alterations. The boundaries of the suit property remained almost the same even after the additions or alterations made in Ex.B4. It is also pertinent to note that the property covered by Ex.B4 was purchased by the deceased under the original of Ex.A2, which shows the boundaries of the property purchased thereunder (suit property) as:
North: 60' road- 68' South: Compound wall of Yuvarani. Saheba of Dasapalli -68'. East : Plot No.35 - 164' West: Plot No.33- 162'.
The boundaries mentioned in Ex.B4 are:
East: Plot No.135- 164' or 49.98 Mts.
South: Compound wall belonging to Dasasailah Yuvarani Saheba 68' or 20.72 Mts.
West: Plot No,33 - 162' or 49.37 Mts.
North: 60' wide road, now Alluri Seetharama Raju Road - 68' or 20.72 Mts.
21. The next contention of Sri J.V. Suryanarayana Rao is that Ex.B4 is not supported by consideration and hence is void. The recitals in Ex.B4 show that sale consideration fixed therein was paid to the vendee, i.e., the deceased. Though a plea was taken by the plaintiff in the plaint that the sale consideration fixed for Ex.B4 is far less than the market value, no evidence is adduced to show that the market value of the suit property is more than the price fixed. Even assuming that the price of the suit property fixed under Ex.B4 is less than the market value, it is not a ground to set aside the sale, because fixation of sale price depends on several factors, and sale Will not, usually, be set aside only on the ground that the sale price is less than the market value. Therefore, the sale consideration, on the evidence on record, cannot be said to be inadequate. In Badugu Venkata Durga Rao v. Surneni Lakshmi, , referring to Tatia v. Babaji, ILR 22 Bom. 176, Dip Narain Singh v. Nageswara Prasad, ILR 52 All. 338, Slate of Kerala v. Cochin Chemical Refindiers Ltd., and Shaik Osman v. Union of India, 1980 (1) An.WR 105, I held that non-payment of sale price as per the terms of contract, i.e., as mentioned in the sale deed, has no effect on the passing of title, and if consideration as mentioned in the sale deed is not paid, the remedy of the vendor is to sue for recovery of unpaid sale consideration claiming a charge over the property sold, and that immediately after registration of the sale deed, irrespective of the fact whether the consideration mentioned in the sale deed is paid or not, title to the property covered by the sale deed passes on to the purchaser. Therefore, even assuming that the consideration as mentioned in Ex.B4 was not paid, the remedy of the deceased, had he been alive, was to take steps for recovery of unpaid money. Even assuming that consideration as mentioned in Ex.B4 was not paid, since the deceased, who had an opportunity to take such a plea that the consideration mentioned in Ex.B4 was not paid to him, did not take such a plea in OS No.390 of 1974 (Ex.A14) and did not question the genuineness or validity of Ex.B4, the plaintiff, as a legatee under a Will executed by the deceased, cannot be permitted to take such a plea. This apart, Exs.A6 and A7 sale deeds show that the deceased paid the sale consideration mentioned therein to his vendors thereunder. There is no evidence on record to show that apart from the sale consideration received under Ex.84 the deceased had money, or other sources of income, to pay the sale consideration to his vendors under Ex.A6 and A7, Therefore, it can be presumed that the deceased paid sale price to his vendors, under Exs.A6 and A7, from out of the consideration received by him under Ex.B4. The fact that the amount covered by Ex.X1 Pay Order, mentioned in Ex.B4, was credited to the account of M, Kameswara Rao, as per the endorsement in his handwriting thereon, as disclosed by the evidence of PWs.2 and 6, has no relevance for deciding this case, because after the vendees (defendants) have given Ex.X.1 Pay Order to the deceased as mentioned in Ex.B4, what the deceased Vendor had done that the said consideration paid by them to him need not be explained by the defendants vendees to prove the validity of the sale, Law does not also require that for a sale to the valid the vendor himself should utilise the sale consideration paid to him for his own benefit, and should not give or utilise it for others. Therefore, even if the deceased, under the influence exercised by M. Kameswara Rao on him, had given the money covered by Ex.X1 to the said Kameswara Rao, the same can have no relevance or bearing on the validity of Ex.B4. The evidence of PW1 alone is not sufficient for holding that M. Kameswara Rao played fraud on the deceased for brining Ex.B4 into existence in favour of the defendants.
22. The evidence on record also does not establish that Ex.B4 was brought into existence by the defendants by playing fraud on, or by misrepresenting facts to, the deceased. The alterations in Ex.B4 are not material alterations. Ex.B4 cannot be said to have been executed without consideration. For the above reasons and for the reason that the plaintiff, in view of Section 152 of Succession Act, did not inherit the suit property, even assuming that the Will executed by the deceased is true, I hold that the plaintiff is not entitled to the declaration sought. The point is answered accordingly.
23. Before parting with the case, I must refer to the contention of Sri T. Veerabhadraiah that since as per Section 47 of the Registration Act, a document which is required to be registered under the said Act operates from the date of its execution, but not from the date of registration, the suit is barred by time. He placed strong reliance on Mabeeba Begum v. Gulam Rasool, and the observations made in Krishna Ceramics and Refractories v. V.S. Krishna Ceramics and Potteries, (DB), in support of his said contention, Sri J.V. Suryanarayana Rao relying on Ram Saran v. Domini Kuer, , contended that a transaction of sale is complete only after the sale deed is copied out in the records of the Registrar, as required by Section 61 of the Registration Act, and so limitation starts only after the document is registered but not before its registration, and so the suit is well within time. Though finding on this aspect is not necessary for disposal of this appeal, in view of my finding on the point for consideration, I will give my finding thereon also.
24. Section 47 of the Registration Act, no doubt, lays down that a document which requires registration, when registered, operates from the date on which it would have commenced if no registration thereof had been required or made, and not from the date of its registration, but in my view the said section and the two decisions relied on by Sri T. Veerabhadraiah have no application to the facts of this case. The ratio in Mabeeba Begum's case (supra) is that a party signatory to a registered document cannot, without seeking cancellation of the deed, file a suit for declaration of title and recovery of possession of the property covered by the said deed. In that case, the members of a family, including the plaintiff in that suit, affected partition of the properties belonging to the family under four documents. The plaintiff and his wife relinquished their right in the property allotted to them in the partition in favour of the other members, under a registered relinquishment deed dated 2-4-1979. On the same day, i.e., 2-4-1978, plaintiff in that suit and his children sold 750 Sq.Yds. to plaintiffs sister under a registered deed. Thereafter suit for declaration of title and consequential relief of injunction and possession was filed, without claiming the relief of cancellation of the documents executed by the plaintiff. It was held that when the plaintiff wanted to attack a registered document to which he is a signatory, he has to seek cancellation of the said document, as contemplated by Section 31 of the Specific Relief Act, and that in the absence of relief of cancellation of such document, suit simplicitor filed for declaration of title is not maintainable. On the facts of that case, the learned Judge held that the cause of action for filing the suit had arisen on the date when application seeking permission for partition, under the provisions of A.P. Vacant Lands in Urban Areas (Prohibition of Alienation) Act, was filed and granted, and since the plaintiff in that case acted upon the partition, and relinquished his right in the property allotted to him thereat in favour of the other members of the family, the suit was barred by time as per Article 59 of the Limitation Act. The facts in this case are entirely different from the facts of that case. So, the said decision does not apply to the facts of this case. In Krishna Ceramics case (supra) the duration of lease contemplated by the parties under an agreement, which was enforced through a decree for specific performance, was in question. It was held that when a document does not say as to from when it should come into operation, as per Section 47 of the Registration Act, the moment the document is registered title to the property would pass to the transferee from the date of its execution. There is a little doubt about the law laid down therein. The said decision does deal with a case of a document which is registered years after its presentation for registration as in the case of Ex.B4. As per Article 59 of the Limitation Act, the period of limitation of three years begins to run not from the date of the instrument, but from the date when the facts "entitling the plaintiff' to have the document rescinded or cancelled "first become known to him". Plaintiff is not the executant of Ex.B4 dated 30-3-1978. Therefore, he cannot be imputed with knowledge of the date of or its execution. He can be imputed with notice, or knowledge, of Ex.B4 from the date of its registration, in view of the definition of 'Notice' in Section 3 of the Transfer of Property Act. So, though Ex.B4 can be said to have come into operation from the "date of its execution, i.e., 30-3-1978, plaintiff can be imputed with knowledge thereof only from the date of its registration, i.e., 18-7-1981. In Ram Saran v. Domini Kuer (supra), relied on by the learned Counsel for plaintiff, the Supreme Court held that the object of Section 47 is to decide which of the two or more registered instruments in respect of a same property is to have effect, and that the said section applies to a document only after it has been registered, and has nothing to do with the completion of the registration. Since the plaintiff, who is not the executant of Ex.B4, filed the suit well within three years from the date of registration of Ex.B4, i.e., 18-7-1981, if he had a right to seek cancellation thereof, the suit would have been in time and could not have been dismissed as time barred. But as held by me deceased, had he been alive and filed the suit on the day on which this suit is filed it has to be dismissed as barred by time. Plaintiff does not get a fresh lease to seek cancellation of Ex.B4, after the death of the deceased.
25. In view of my finding on the point for consideration, the appeal is allowed. The judgment and decree of the Court below are set aside and OS No.8 of 1983 is dismissed. Parties are directed to bear their own costs.